Spousal Elective Share Requirements in Arkansas

At a glance

Requirements one by one

The elected share is dower or curtesy

Ark. Code § 28-39-401 gives a spouse the right to take against a will only after more than one continuous year of marriage. The election substitutes the dower or curtesy rights the spouse would have received in intestacy. Homestead and statutory allowances remain additional.

The amount is not one flat fraction:

• If descendants survive, § 28-11-301 gives a one-third life estate in land of which the decedent was seized during the marriage, and § 28-11-305 gives one-third of the personal estate outright.
• If no children survive, § 28-11-307 gives one-half against collateral heirs but one-third against creditors. New-acquisition real property is taken in fee simple; ancestral real property is taken only for life.

The statutes do not create an augmented-estate list for POD accounts, TOD accounts, beneficiary designations, revocable trusts, retirement benefits, or life insurance. The real-property statute does have one transfer rule: with descendants, § 28-11-301(b) preserves dower or curtesy in land sold during the marriage without the spouse's legal consent against estate creditors.

The filing clock is tied to creditor claims

Section 28-39-403 permits filing through one month after the claims-filing period expires. The general nonclaim period in § 28-50-101(a)(1) is six months after the first publication of notice to creditors, so the ordinary election date is one month after that six-month period. If share-affecting litigation is pending when the election period ends, the spouse has until one month after the final circuit-court order deciding the issue.

Section 28-39-406 allows withdrawal during the filing period only before a distribution made in reliance on the election. Afterward, withdrawal requires a cause that would justify rescinding a deed.

Arkansas prescribes the instrument and record

Within one month after the will is admitted to probate, § 28-39-402 directs the clerk to mail the spouse notice if the address is known. Section 28-39-404 then requires a written, signed, acknowledged election filed with the probate clerk of the circuit court. The statutory form expressly renounces and disclaims all will benefits.

The clerk records the election in the will records. The personal representative must also record a duplicate original or certified copy in every other Arkansas county where the decedent owned an estate of inheritance in real property at death. Section 28-39-405 makes the right personal and nonsurviving, but permits the guardian of an incompetent spouse's estate to elect after authorization by the court supervising the ward's estate.

Agreements and property-specific relinquishment

A premarital agreement may address property rights, disposition at death, and wills or trusts under § 9-11-403. Section 9-11-402 requires a writing signed and acknowledged by both parties and defines four acknowledgment routes. Section 9-11-406 makes voluntariness and the combined unconscionability/disclosure test part of enforceability.

Separately, § 18-12-402 permits property-specific relinquishment of dower or curtesy in a spouse's real estate by joining the spouse's deed or using a separate acknowledged instrument to the spouse's grantee or a title claimant.

What trips people up

• “No children” does not always mean one-half. The creditor tier is one- third, and ancestral realty produces a life estate rather than fee ownership.
• The marriage threshold is more than one year. Exactly one year does not satisfy § 28-39-401(a)'s “in excess of” language.
• The clerk's notice does not replace filing. The spouse still must submit the acknowledged statutory election by the § 28-39-403 deadline.
• An election gives up will benefits. Section 28-39-404's prescribed form renounces and disclaims “any and all benefits” under the will; it does not use those gifts as a credit against an additional elective amount.

Common questions

Can the spouse's heirs file after the spouse dies? No. Section 28-39-405 makes the election personal, nontransferable, and nonsurviving.

Can a guardian elect? The guardian of an incompetent spouse's estate may do so, but only with authorization from the court that has jurisdiction over the ward's estate.

Must the election be notarized? The statute says signed and acknowledged. An acknowledgment is required, but §§ 28-39-401–406 do not add a separate sworn verification under penalty of perjury.

Is the share paid only in cash? No. The statutes describe dower or curtesy interests in the decedent's qualifying real and personal property, including life estates in some realty, rather than a single cash percentage.

Statutes and sources

• Ark. Code §§ 28-39-401 to -406 — eligibility, additional rights, clerk notice, deadline, prescribed instrument, guardian authority, and withdrawal. Public-domain Arkansas Code mirror (accessed 2026-08-02).
• Ark. Code §§ 28-11-301, 28-11-305, and 28-11-307 — descendant, property- type, ancestral-property, heir, and creditor tiers. Public-domain Arkansas Code mirror (accessed 2026-08-02).
• Ark. Code § 28-50-101(a)(1) — six-month general creditor-claims period. Public-domain Arkansas Code mirror (accessed 2026-08-02).
• Ark. Code §§ 9-11-402, 9-11-403(a), and 9-11-406(a) — premarital-agreement formalities, death-related content, and enforceability. Public-domain Arkansas Code mirror (accessed 2026-08-02).
• Ark. Code § 18-12-402 — property-specific relinquishment of real-estate dower or curtesy. Public-domain Arkansas Code mirror (accessed 2026-08-02).